GBS: Filings Roundup for Monday, September 14

Well, I was wrong about the pace tailing off significantly. Eight-eight new filings today, and the clerk’s office was still uploading one every few minutes when 5:00 hit. They’re getting a less interesting, though, as there are more and more duplicates in the mix. Today, we saw:

  • Twenty-seven more German publishers, two French publishers, two Dutch publishers, six New Zealand authors, two Spanish publishers, and seven more Germans signing a different (but still painfully familiar) letter. All these numbers are approximate, since some of them may be duplicate scans of the same letter.
  • Proskauer Rose moved to withdraw as the attorney for the Canadian Standards Association due to a late-discovered conflict. Oops. Fortunately for the CSA, the firm of Benesch Friedlander subbed in.
  • Mumia Abu-Jamal objected to the settlement, in a typewritten letter sent from death row. (The “J” on the typewriter he used is faint, so the clerk’s office put the letter online under “Mumia Abu-Tamal,” but it’s definitely him.)
  • The American Psychological Association objected to the settlement. Their objection only goes to the $60 per work digitized, which they think is unfairly small. (If they’re right, then this case probably can’t be settled at all, on any terms, and it’s either fair use all the way or the lawsuit bankrupts Google.) Their most interesting specific argument is that Google willfully infringed their books, because they sent Google a letter with a list of titles not to be scanned, Google confirmed receipt of it and confirmed that the list had been uploaded, and that Google nonetheless has scanned almost a thousand of the APA’s titles. On the whole, it’s not as strong an objection as it could have been. For one thing, the APA told Google not to scan works dated as far back as 1894—works that would appear to be unambiguously out of copyright. For another, the objection is notably devoid of any claim that the works Google digitized appeared on the list sent by the APA, or that they weren’t digitized before Google received the letter. While Gillian Spraggs has noted in a comment here that the APA’s facts could be used to make a case against Google’s trustworthiness, that’s not the case the APA actually makes. Instead, the objection’s entire import is “I want my two dollars!” The APA does not come across well.
  • Japanese author Takashi Yamomoto and publisher Gendaishicho-shinsha filed objections. The non-profit that owns the copyrights of the late Akiko Ikeda “express[ed] [its] rejection to the Settlement” and opted out.
  • Author Regina Harris Baiocchi opted out on the web site, but, just to be sure, sent a letter to the court, as well. Robert Massie opted out via letter to the settlement administrators, but then they sent him another notice, so he sent a letter to the court as well. And oh, yeah, Massie is a former president of the Authors Guild, so while he shares their high-protectionist attitude, he’s quite willing to say that the Guild doesn’t represent all American authors.
  • The Jenny Darling & Associates literary agency filed what appears to be an objection (only the last two pages were scanned), claiming that Australian authors can’t claim their $60 payments without getting taxpayer IDs from the US, which they can’t do without providing the IRS proof of their identity, which requires a Hague Convention notarization with apostille, which will run AUD $290. I don’t know whether this chain of reasoning is true, but if so, it’s a powerful point.
  • Author Alex M.G. Burton objected (in a full brief) on a variety of familiar grounds—plus an argument that many members of the plaintiff class lack standing to sue, and thus can’t be included in the settlement class. The Supreme Court will pass on this one soon—in a case set for argument the same day as the fairness hearing.
  • Authors Jean L. Cooper, Stephanie Golden, John Mauldin, and Jesse Rutherford filed short letters of objection. Vivian Vande Velde opted out, and then objected for good measure. Stephen Nachamovitch filed a letter with thoughts on censorship, the public domain, and writers’ rights.
  • Author Lynne Finney opposes the settlement, and she filed an absolutely scathing letter that seethes with anger at Google and the Authors Guild. (Once again: great case to watch, because authors tend, yes, to be good writers.)
  • Polish author Waldemar Łysiak opted out, and so did Massachusetts author G. Emil Ward.
  • NSF International, which drafts safety standards, filed a brief, strange objection, complaining that the Google Books site includes outdated standards. I’m a fan of putting more teeth in the settlement (on privacy, for example), but I’m not sure that this one belongs in there. I would think that Google would be more than happy to have the NSF’s cooperation in identifying outdated standards as such.
  • Sony/ATV Music went the EMI Music route and opted out its musical works, en masse, without specifically identifying the works in question.
  • The Left Coast Press filed an objection concerned about the settlement’s effects on small publishers like themselves.
  • Author and lawyer Holly Towle objected to the settlement in a letter that includes a photograph of the crowded computer terminals in the Seattle Public Library. (Well, I think they’re crowded; it didn’t reproduce that well in the scan.)
  • The Writers Union of Canada filed a letter objecting to a few aspects of the settlement, but expressing appreciation of its plans to create the Registry.

The APA objection gives me the impression that, having tried the policy (recommended by Google) of asking Google nicely to exclude their works from the start, and found that this had no effect, they have decided that the only way is to opt in: presumably with the aim of controlling the use of their works through the Registry, if the settlement goes through. It is clear to me that a lot of authors, and no doubt publishers, though those are more close-mouthed, are opting in on precisely that basis: they don’t like the settlement, but have concluded that opting in is the better way to limit damage to the value of their copyrights.

However, there remains the question of whether Google will pay any more attention to directions received by way of the Book Rights Registry than it did to a direct (and publicly solicited, let’s not forget that) request from the APA.

As for the money: the admin involved in claiming works on the database and managing them is already costing authors and publishers a very great deal of money - time is money, the energy that goes into admin is money - and if the settlement is approved this will continue to be a huge drain on the resources of the book industry.

The APA wants their two cents worth so that they can continue to function as a publisher. Publishers, including institutional publishers, do a socially and culturally necessary job. This is what the ‘progressive’ supporters of the settlement keep missing: there is an important industry at stake here.

I presume the list of books has been included as a supplementary document. Justia doesn’t seem to post those up, so I haven’t seen it yet. Including books from 1894 was a bit stupid; it sounds as though they sent their entire list of publications, without stopping to think about what they were doing. But when someone points a gun at your head, and tells you he is taking the property on which you depend (at least in part) for an income, it is not always easy to think straight.

You note that Reed Elsevier v. Muchnick is set to be heard the same day as the fairness hearing. Michael J. Boni is a lead counsel in both cases- is that a problem?

“I would think that Google would be more than happy to have the NSF’s cooperation in identifying outdated standards as such.”

Perhaps. But why should the NSF row in Google’s galley? Why should Google put them in the position where they have to divert staff time to work for nothing to sort out a mess that has been made by Google’s acting, to say the least, precipitately and without proper planning? (Not to mention quite possibly illegally.)

Google has digitized millions of books wholesale by the shelf, without consideration of what’s current, what’s obsolete, what matters, what’s trivial. It evidently made the foolish error that metadata either didn’t matter, or could be recreated after the event: at any rate, it let all these books get separated from their bibliographical records - a very foolish mistake, which it is clearly having problems trying to rectify. In effect, it has rendered books into book soup, on a massive scale. And it is now finding out that book soup has its uses as material for search, and, perhaps, for certain kinds of machine-based research, but if you are going to run a book-selling business (or a library) you need to pay attention to issues of content and quality and value. So the book soup now has to be reconstituted into books, and assessed as such. That is a problem for Google, but if the settlement goes through it will also be a problem for US society. What use is access to ‘knowledge’, if the knowledge is out of date?

Eric, I assume that Boni will be in one place and Zack in the other.

But why should the NSF row in Google’s galley?

That could be turned around; why should Google row in the NSF’s? They’re the ones with idiosyncratic concerns about making old editions of their work unavailable (concerns that may happen to line up with their commercial interest in selling copies of the new editions).

We also had “book soup” in the first hundred years after Gutenberg; printers rushed into print new editions of every old manuscript they could get their hands on. Europe was flooded with books, and confronted with the fact that they had no real way of telling the authentic from the forged, the original from the variant, the old from the new, and the good from the bad. It took a long time to sort everything out, and required inventing entirely new disciplines such as philology. We’re just at the beginning of that era with digitization. If Google is giving us book soup, that’s still an opportunity as well as a problem—this is a broth with much more in it than we’ve had access to before.

“They’re the ones with idiosyncratic concerns about making old editions of their work unavailable (concerns that may happen to line up with their commercial interest in selling copies of the new editions).”

Maybe you would find their position less odd if they were publishers of legal works, concerned that the public might misinform themselves about the law by consulting out-of-date textbooks.

Moreover, their commercial interest is a perfectly legitimate one. They do the work of developing new standards in their field: they are entitled to be paid for disseminating their work to people who want to avail themselves of it.

Actually, I feel the same way about old legal materials.